2628-00-HS Guardian Tree Service Inc., Applicant v. Ministry of Labour, Responding Party.
2629-00-HS Guardian Tree Service Inc., Applicant v. Ministry of Labour, Responding Party.
BEFORE: John Morgan Lewis, Vice-Chair.
DECISION OF THE BOARD; December 21, 2000
This is an application under section 61(7) of the Occupational Health and Safety Act, R.S.O. 1990, c.0.1 (the “Act”) seeking the suspension of a number of orders issued by Inspector Eric Theisen in Field Visit No. 934217 on November 14, 2000. The application to suspend the orders has been assigned Board File No. 2629-00-HS. The applicant has also filed an appeal of the orders which has been assigned Board File No. 2628-00-HS. This decision deals only with the suspension request.
The applicant is contracted to Bluewater Power Distribution Corporation (formerly Sarnia Hydro) to provide tree clearing services from its hydro lines. All of its field employees are trained in live line clearance work. Part of this work entails the removal of tree branches which may be in contact with high voltage wires. The applicant’s employees are trained in, and are competent persons, for using the live line technique of removal of tree branches, pursuant to the requirements of the EUSA rulebook.
As a result of a complaint laid by passerby who worked for Ontario Hydro on September 19, 2000, there was a meeting with Sarnia Hydro, EUSA, the applicant and Inspector Theisen on September 20, 2000. Inspector Theisen took the position that the applicant’s employees were not to work less than .3 metres from live voltage lines, contrary to the specific allowance governed by the EUSA rulebook. At the meeting, the requirements for live line technique were explained to Inspector Theisen, and all the other parties agreed that the applicant was in compliance with the EUSA rulebook. Inspector Theisen requested documentation on the training of the workers at the end of meeting.
A follow up meeting was scheduled for November 15, 2000. At that meeting, Inspector Theisen stated that the workers must not work within three feet of the line, regardless of the section 42.2 of the Industrial Regulations. At the end of the meeting, Inspector Theisen issued the orders which are set out as follows:
Order No. 1
Pursuant to section 42.2 (a) of O. Reg. 851/90, the employer shall ensure that work performed near electrical transmission systems or outdoor distribution systems rated at more than 750 volts shall be performed in accordance with the Rule Book, Electric Utility Operations published in 1990 by the Electrical Utilities Safety Association of Ontario, Incorporated, ensuring that the specified limits of safe approach are maintained at all times.
Order No. 2
Subject to section 42.2 of O. Reg. 851/90, the employer shall ensure where a vehicle, crane or similar equipment is operated near a live power line, and it is possible for any part of the vehicle, crane or similar equipment or its load to make contact with the live power line,
(a) a worker shall be stationed within the view of the operator to warn the operator when any part of the equipment is approaching the minimum distance from the live power line; and
(b) clearance shall be allowed for any change in boom angle and for any swing of the hoisting cable and load.
- On December 15, 2000, counsel for the applicant wrote to Ms. Sylvia Belizean of the Ministry of Labour in which she confirms the parties understanding that the orders which are the subject matter of these proceedings were to be withdrawn by the Ministry of Labour. The text of this letter is set out as follows:
Further to our telephone conversation on December 13, 2000, I would confirm that you have advised that the Ministry of Labour is withdrawing Order Nos. 1 and 2 on Premise/Project Form 934303 dated November 14, 2000 issued by Inspector Eric Theissen [sic], Industrial Health and Safety Officer.
We are relying on your representation that the Orders are withdrawn and will not be providing the forms A-65 and A-67 to the Ontario Labour Relations Board. I would also confirm that you have advised that you will ensure that this is done before December 18, 2000.
If this is not the case please advise us immediately so that we may preserve our position at Ontario Labour Relations Board. A copy of this letter will be forwarded to Tim Parker, Registrar for the Ontario Labour Relations Board.
The applicant has advised the Board that the Ministry of Labour has not complied with its representation and that the orders have not yet been withdrawn. The Ministry of Labour and Inspector Theisen have not filed a response to the applicant’s request for a suspension of the orders. The factual assertions contained in the application, including the fact that the Ministry of Labour represented that the orders were to be withdrawn, are therefore uncontested and are deemed to be accepted by the Ministry of Labour and Inspector Theisen.
In dealing with a request to suspend on order, the Board’s approach is set out succinctly in The Regional Municipality of Hamilton-Wentworth, [1998] OLRB Rep. Aug. 709:
Three factors have generally been considered by the Board when determining whether a suspension of an order is appropriate in the circumstances:
(a) whether the suspension of the order (or, alternatively, the failure to suspend the order) would endanger worker safety;
(b) the prejudice to the parties if the order is or is not suspended; and
(c) whether there is a strong prima facie case for a successful appeal of the order.
- Having reviewed the submissions of the applicant which, as noted previously, are not contested by the Ministry of Labour or Inspector Theisen, the Board is satisfied that it should exercise its discretion and suspend the operation of the orders in dispute pending the disposition of their appeal.
Disposition
- The application for a suspension of the orders in Field Visit No. 934217 is hereby granted. The Board, pursuant to section 61(7) of the Act, hereby suspends the operation of the orders in Field Visit No. 934217 dated November 14, 2000 pending the disposition of their appeal.
“John Morgan Lewis”
for the Board